Manteca Veal Co. v. Corbari

BRAY, J.

Defendant appeals from a judgment in favor of plaintiffs in the sum of $8,020.82 and interest.

Questions Presented

The main question is factual—the sufficiency of the evidence to support the court’s finding in favor of plaintiffs on common counts, one for goods sold and delivered, one upon an account stated. Secondary questions concern the court’s order requiring defendant to produce his books and the effect of an amendment to the complaint.

Evidence

Under the rule that our duty on the appeal is to determine if there is substantial evidence to support the court’s finding, there can be no doubt that it is supported. One Nicolai, doing business as a wholesale meat dealer under the name of Nicolai Meat Company, was indebted to many creditors. (Nicolai was declared bankrupt after the commencement of this action.) Among them was defendant, to whom about $70,000 was owed, and plaintiffs, who had attached for about $11,000. In December, 1947, the balance due plaintiffs was paid by defendant. Defendant testified this was a loan to Nicolai pursuant to an agreement between plaintiffs and Nicolai Meat Company to keep the business alive and to get plaintiffs to continue to deliver meat to Nicolai. Attorney Walsh testified that Nicolai had advised with him relative to filing a petition under chapter XI of the Bankruptcy Act. A meeting then was called by defendant’s attorney at which the latter stated that if defendant came in and operated the business there would be no necessity for filing such petition. It was then arranged that the business was to be entirely controlled by defendant but operated by one Arlin. Then a written assignment of the management of the Nicolai Meat Company for the benefit of himself and the other creditors was made to defendant, in which defendant agreed to furnish meats for the business. Defendant continued to manage the business during all the time here involved.

Plaintiff Antifae testified that he told Nicolai plaintiffs would sell him no more meat. Probably the same day, de

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fendant asked Antifae if he would continue to deliver meat to Nicolai Meat Company. Antifae informed him he would not give Nicolai a penny’s worth more. Thereupon defendant said, “I will pay for it; it will help me to get my money out.” Peter Antifae, plaintiffs’ manager, testified that defendant told him that defendant would be responsible for the meat delivered, that he would pay the bill. Plaintiff Antifae testified that defendant stated that he was not changing the name of the Nicolai Meat Company and to bill in that name. Plaintiffs had no further dealing with Nicolai. Numerous orders were placed with plaintiffs for meat by defendant and also by one Arlin, defendant's authorized agent. In June, 1948, defendant asked Peter Antifae no longer to bill the Nicolai Meat Company for meat delivered by plaintiffs to that company, but to bill defendant instead.